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BP Business Economic Loss Claim Appeal 2015-1501: Boat Dealer as Tourism


The following is an Appeal Panel Decision issued pursuant to Section 6 of the BP Deepwater Horizon Economic & Property Damages Settlement Agreement and the Rules Governing the BP Appeals Process. Links may have been added to assist the reader. The original decision may be found here, as well as a glossary of BP Settlement terms.

This Claimant is a waterfront boat dealership located in Ft. Myers Beach, Florida (Zone C). It received a pre-RTP compensation amount of $128,842.78. It was also granted a Tourism Industry designation. BP does not challenge the amount of the award; instead, it disputes the Business Industry designation.

BP asserts that Claimant’s business is that of a boat dealer whose NAICS Code is not found on the extensive list of presumptive Tourism Industry businesses found in Settlement Agreement Exhibit 2. Further, while some of Claimant’s customers might travel from their homes outside the state of Florida, they do so “for the purpose of making a purchase, not to go on a vacation or to engage in Tourism.” Further, to the extent that Claimant might sell boats to or provide services for companies that often deal directly with tourists, the Tourism Industry designation may not apply to that activity, citing prior Appeal Panel Decisions rejecting the theory that such a designation can be based on sales to other businesses that actually serve tourists.

In reply, Claimant argues that its business is not only focused on the sale and service of new and pre-owned boats but also commonly handles the sale of boat engines, trailers, boating and fishing accessories, marine electronics, fuel and other retail goods related to boating. It is located in a marina which receives a large volume of out of state visitors and customers. It reports that many of its sales are to “snowbirds”, those individuals whose primary home communities are in the northern states but who travel to southwest Florida during the winter to escape cold weather. When it comes to boating, it submits, many purchase homes locally and store their boats there while many others rent homes and store their boats at marinas.

To further illustrate that its business has mostly tourism based customers, Claimant reports that its dealership is bound by manufacturer-to-dealer agreements in which the manufacturers dictate territories for the sale of new boats. Dealerships are prohibited from making sales of new boats which are intended for use outside the dealer’s local territory, in this case, southwest Florida. Thus, in order to purchase a new boat, the customer must either live in the Ft. Myers area dealer territory or travel to southwest Florida for periodic use of his or her boat. Consequently, Claimant asserts New Boat Sales that do not report a local address represent purchases by customers who live elsewhere and travel into southwest Florida to go boating and fishing. To that end, Claimant supplied the Settlement Program with a comprehensive listing of all its new boat sale transactions which occurred between January 1, 2007 through December 31, 2009. That report indicates, in each year, those sales were divided almost equally between local and non-local customers. As above noted, Claimant states that many of its “snowbirds” own or rent homes within its dealership territory, so the proportion of its sales to tourists might be even greater.

The record reflects that the Claims Administrator assigned the NAICS Code for Boat Dealers, 441222, in analyzing this claim. While, as above noted, that Code is not found on Exhibit 2, it is well understood that a Claimant may still be considered to fall within the Tourism definition if the Claims Administrator, after reviewing the totality of the circumstances, including consideration of its activities during the Benchmark and Class Periods, determines the Claimant’s business meets that definition. In that vein, this panelist notes that NAICS Code 447190 – Other Gasoline Stations, which lists, as an example, marine service stations (those retailing fuels and providing repair services, etc.) recognizes a part of Claimant’s business, as does NAICS Code 451110, Sporting Goods stores which lists, as examples, fishing supply stores (e.g., bait) and tackle shops (i.e. fishing). Those Codes are included on Exhibit 2.

After de novo review, this panelist has concluded the Claims Administrator had before him abundant evidence to support his conclusion that Claimant’s business was entitled to the Tourism Industry designation. There is no error, nor is there any basis for BP’s claim for remand to further consider that determination. This appeal is denied and Claimant’s Final Proposal is hereby selected.

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